Scott v. BNSF Railway Company et al

Filing 81

MEMORANDUM Opinion Signed by the Honorable John F. Grady on 4/20/2012. Mailed notice(cdh, )

08-4908.121-JCD

April 20, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRANT W. SCOTT,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

No. 08 C 4908

MEMORANDUM OPINION
Before the court is the motion of defendant BNSF Railway
Company (“BNSF”) for summary judgment, which is denied for the
reasons explained below.
BACKGROUND
Plaintiff, Brant W. Scott, has been employed by BNSF, a
corporation

that

operates

a

railroad

interstate commerce, since 1969.

as

a

common

carrier

in

He brought this lawsuit for a

shoulder injury he allegedly sustained on September 9, 2006 while
working

as

scheduled

a
to

conductor/brakeman
travel

from

Eola,

on

a

train.

Illinois

(which

Naperville and Aurora) west to Mendota, Illinois.
crew

members

that

day

Williams, the engineer.

were

Tom

Lynch,

a

The

train
is

was

between

Scott’s fellow

conductor,

and

Art

Trainmaster Alex Viel rode along with the

crew.
After Scott reported to work at the Eola rail yard, a job
briefing was conducted about the day’s work and safety.

After the

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briefing, the crew got on their engine and went to the east rail
yard to assemble their train. After putting the train together and
performing tests, they left Eola to make railcar deliveries.
The crew planned to use a certain spur track to store a single
railcar for another train to pick up and take further west.

At the

spur, Scott got off the train and told Williams to pull ahead some
distance and then stop.

Scott then got permission to move between

the train cars and pulled the uncoupling pin in order to “cut” the
railcar away from the rest of the train.

After this cut, just the

single car that was going to be moved onto the spur was attached to
the engine.

Lynch, who manned the “head switch,” unlocked the

switch at the unlock box, and Scott put a hand brake on the train
to keep it from rolling.
Then, Scott walked over to the device that is central to this
case--the “derail,” which, as the name suggests, derails equipment
that moves through it.
manually operated.

The derail was made of painted steel and

It was attached, with spikes driven through

plates, to railroad ties that abutted the track.

The plan was that

Scott would unlock the derail, “throw” it (i.e., move it to the
open position with a handle that is attached to a rod), and wait
for the engine to move the railcar to him.

He would then stop the

railcar east of the derail and cut it away from the engine by
pulling the pin, and send the engine back out of the spur.

To

prevent the railcar from rolling away, he would apply a hand brake,

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and then put the derail back “on” (i.e., move it to the closed
position) and lock it.

Lynch would then send the engine back to

Scott, who would re-couple the train, release the hand brake, and
get back on the engine to travel to the next work site.
The opening of the derail, at least, went as planned.

Scott

approached the derail, looked at it to confirm that no one had
tampered with it, unlocked the derail, and removed the lock.

Then

he grabbed the handle of the device with both hands, lifted it up,
and moved the handle in the opposite direction, to the west.
handle

is

initially

easy

to

lift,

but

the

move

(The

becomes

progressively more difficult as the handle moves from east to west
and the derail is opened.)

After opening the derail, Williams

moved the engine and railcar over the spur section of the track,
east of the derail.

When the engine was stopped, Scott detached

the railcar from the engine and gave Lynch a signal to move the
engine back through the derail area and out of the spur.

Scott

then secured the railcar with a hand brake.
In his attempt to close the derail, Scott encountered a
problem that allegedly caused him injury.

He walked over to the

derail to close it, putting his right foot on the ballast on the
west side of the west railroad tie and his left foot on the ballast
east of that tie.

While in a “catcher’s squat,” he began to lift

the handle with both hands and turn it back from west to east.
Suddenly, the west plate of the derail popped up three inches, and

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all three spikes came out of the tie.

While Scott’s momentum

continued to move the handle of the derail, the tips of the three
spikes momentarily “caught,” and then the entire base of the derail
(both

plates

and

all

six

spikes)

jerked

upward

and

became

completely detached from the railroad ties. Scott stumbled, let go
of the handle, and grabbed his shoulder in pain.

He claims that

his resulting shoulder injury eventually required surgery and
caused him to miss nine months of work.
Scott asserts a claim against BNSF for violation of the
Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq.,
which holds railroads liable for employees’ injuries “resulting in
whole or in part from the [carrier’s] negligence.”

BNSF moves for

summary judgment.
DISCUSSION
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In considering such a motion, we construe the evidence

and all inferences that reasonably can be drawn therefrom in the
light most favorable to the nonmoving party. See Pitasi v. Gartner
Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999).

“The court need

consider only the cited materials, but it may consider other
materials in the record.”

Fed. R. Civ. P. 56(c)(3).

judgment should be denied if the dispute is ‘genuine’:

“Summary
‘if the

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evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’”

Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d

1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court will enter summary

judgment against a party who does not “come forward with evidence
that would reasonably permit the finder of fact to find in [its]
favor on a material question.”

McGrath v. Gillis, 44 F.3d 567, 569

(7th Cir. 1995).
The Seventh Circuit has outlined the purpose of the FELA and
a FELA plaintiff’s summary-judgment burden as follows:
The intent of the FELA is to provide broad remedial
measures for railroad employees. A railroad will thus be
held liable if the employer’s negligence played any part,
even the slightest, in producing the injury.
A
plaintiff’s burden in an FELA action is therefore
significantly lighter than it would be in an ordinary
negligence case. Indeed, some of our cases have noted
examples of FELA cases submitted to juries based upon
evidence “scarcely more substantial than pigeon bone
broth.” As light as this burden is, the plaintiff must
still present some evidence of negligence in order to
survive a motion for summary judgment. Specifically, the
plaintiff must offer evidence creating a genuine issue of
fact on the common law elements of negligence, including
duty, breach, foreseeability, and causation.
Green v. CSX Transp., Inc., 414 F.3d 758, 765-66 (7th Cir. 2005)
(citations and footnote omitted).

“The FELA holds railroads to a

prudent-person standard of care, and a plaintiff who wishes to
demonstrate

that

a

railroad

breached

its

duty

must

show

circumstances that ‘a reasonable person would foresee as creating

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a potential for harm.’”

Williams v. Nat’l R.R. Passenger Corp.,

161 F.3d 1059, 1062 (7th Cir. 1998) (citation omitted).
In its motion, BNSF argues that Scott has failed to produce
evidence that the company was negligent, focusing on the element of
foreseeability.

BNSF contends that there is no evidence that it

had actual or constructive knowledge of any defect “of the nature
that caused [Scott’s] claimed injury.”

(Def.’s Mem. at 3.)

BNSF

notes that it is undisputed that plaintiff had operated the derail
during the month before the accident (as well as minutes before the
accident)

and

that

it

had

operated

properly,

and

it

cites

plaintiff’s deposition testimony in which he conceded that prior to
his operation of the derail, nothing looked out of the ordinary,
and that he did not “take exception to the way the ties were.”
(Def.’s R. 56.1 Statement, Ex. C, Dep. of Brant Scott, at 41-42.)1
1/

This portion of questioning, regarding the condition of the railroad
ties and derail when plaintiff first approached the area, was awkwardly phrased:
Q. Did you inspect the ties that the derail was on?
A. Yes.
Q. What did you see there? Did you take exception to the way the ties
were?
A. No.
Q. Did you take exception to the condition of the derail?
A. No.
(Scott Dep. at 42.)
Later in the deposition, clearer questions were asked
regarding the condition of the ties and derail when Scott again approached the
derail to close it:
Q. When you went back to the derail the second time to close it, to take
it from west to east, did you inspect the derail again for any defects?
A. Yes.
Q. Did you inspect the ties for any defects?
A. Yes.
Q. Did you find any defects in either the derail or the ties?
A. Nothing out of the ordinary.
(Scott Dep. at 59.)

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BNSF also cites plaintiff’s deposition testimony that he and his
co-workers had never seen a derail of the same type come out of
railroad ties before.

Regarding plaintiff’s theory that the holes

for the derail spikes in the railroad ties had become enlarged over
time to the point that they no longer held the spikes (and thus the
derail) in place, BNSF emphasizes that plaintiff conceded that a
visual

inspection

enlarged holes.

would

not

have

(Scott Dep. at 117.)

enabled

anyone

to

discover

BNSF also argues that there

is no evidence that it performed track inspections “contrary to any
standards.”

(Def.’s Mot. at 6.)

Scott asserts that BNSF failed to use proper care to discover
the deterioration in the railroad ties and repair the defect.

It

is undisputed that BNSF is required to conduct periodic inspections
on its track and that track “other than main tracks and sidings,”
which is evidently the type involved here, should be inspected
“[m]onthly

with

inspections.”
deposition

at

least

20

calendar

49 C.F.R. § 213.233(c).

that

the

allegedly

enlarged

days

interval

between

Scott admitted at his
spike

holes

were

not

visible, but testified that track inspectors could have put a
“track bar” underneath the derail and tugged at the bar to check to
see if the derail was properly attached to the ties.

He also

testified that he has seen BNSF employees perform this type of test
on derails.

(Scott Dep. at 92, 94-95.)

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In support of his argument that BNSF had a reasonable way of
knowing that a potential hazard existed, Scott primarily points to
photographs that were taken on the day of the incident of the
derail and the railroad ties to which it was attached, and contends
that the ties were “rotten, not in proper condition, and would not
hold the derail.”

(Pl.’s Mem. in Opp’n at 4.)

According to Scott,

“[i]t takes years for these ties to rot, and any track inspector
would be able to tell these ties were old and should be replaced.”
(Pl’s Mem. in Opp’n at 5.)

The photographs taken on September 9,

2006, Ex. 4 to plaintiff’s memorandum, do show a number of large
splits and cracks in the ties, some of which passed through the
same area as the spikes that held the derail.
deposition

testimony

of

Gregg

Konecny,

Scott also cites the
a

superintendent

of

operations for BNSF, who agreed that “it takes months or years” for
a railroad tie to rot or for spikes to work themselves out of a
tie.

(Pl.’s Mem. in Opp’n, Ex. 2, Dep. of Gregg Konecny, at 19-

21.)
In addition, Scott points to the accident report that his
immediate supervisor, Alex Viel, completed on the day of the
incident indicating that a track defect contributed to Scott’s
alleged injury.
Employee

On page 4 of Viel’s “Supervisor’s Report of BNSF

Injury/Illness,”

in

the

section

titled

“Injury

Information,” the form requires a “Probable Cause/Circumstance
Code.”

Viel used the code “6C,” which falls into the “Track

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(Defective)” category of probable-cause codes listed on page 12 of
the report.

(Pl.’s Mem. in Opp’n, Ex. 1.)

Scott also cites his

own deposition testimony concerning a statement that the track
inspector, Jim Ashlock, made to him after the incident:
Q. Are you aware of anyone else inspecting the derail after
you left?
A. Yes.
Q. Who is that?
A. Jim Ashlock and Tom Travelstead and his crew.
. . .
Q. Who is Jim Ashlock?
A. He’s the track inspector.
. . .
Q. To your knowledge did they fix the derail?
A. Yes.
. . .
Q. Did you ever have any conversations with Mr. Ashlock about
this event?
A. Afterwards?
Q. Yes.
A. Yes.
Q. What did you say?
A. I asked him what he found.
Q. What did he say?
A. He said the holes weren’t going to hold the spikes, they
were wore out.
(Scott Dep. at 69-71.)
BNSF objects to the testimony regarding Ashlock’s statement as
inadmissible hearsay.

The objection is overruled because the

statement constitutes an admission by an opposing party under
Federal Rule of Evidence 801(d)(2).

BNSF also objects to the

affidavit submitted by Scott in response to BNSF’s motion, in which
Scott states that in his deposition, when he testified that he did
not take exception to the railroad ties and that nothing looked
“out of the ordinary” at the derail, what he meant was that he

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frequently saw old and worn-out ties; he was not stating that
nothing was wrong with them, that they were safe, or that they were
in proper condition.
Scott ¶¶ 7-8.)

(Pl.’s Mem. in Opp’n, Ex. 5, Aff. of Brant W.

BNSF argues that the affidavit contradicts Scott’s

prior deposition testimony and should be disregarded as a sham.
The Seventh Circuit has “long followed the rule that parties
cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of
fact with affidavits that contradict their prior depositions.” Bank
of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,
1168 (7th Cir. 1996).

“When a party has given clear answers to

unambiguous questions which negate the existence of any genuine
issue of material fact, that party cannot thereafter create such an
issue

with

explanation,

an

affidavit

previously

that

given

merely

clear

contradicts,

testimony.”

Id.

without
at

1170

(quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736
F.2d 656, 657 (11th Cir. 1984)).

The rule “serve[s] an important

purpose of weeding out non-meritorious claims for which a trial is
not necessary . . . . [but] must be applied with caution.” Flannery
v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 (7th Cir.
2004).

In light of the jury’s role in resolving questions of

credibility,
[a]
definite
distinction
must
be
made
between
discrepancies which create transparent shams and
discrepancies which create an issue of credibility or go
to the weight of the evidence. . . . To allow every . .
. variation in a witness’s testimony to be disregarded as
a sham would require far too much from lay witnesses and

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would deprive the trier of fact of the traditional
opportunity to determine which point in time and with
which words the witness . . . was stating the truth.
Variations in a witness’s testimony . . . throughout the
course of discovery create an issue of credibility as to
which part of the testimony should be given the greatest
weight if credited at all.
Bank of Illinois, 75 F.3d at 1169-70 (quoting Tippens v. Celotex
Corp., 805 F.2d 949, 953-54 (11th Cir. 1986)).

Stated a bit

differently, the assessment is “whether a subsequent statement so
squarely contradicts an earlier one as to create only a sham issue
of fact.”

Bank of Illinois, 75 F.3d at 1170.

A “contradiction”

exists only when the two statements are “inherently inconsistent”
and not when the later statement merely clarifies an earlier
statement that is ambiguous or confusing or is based on newly
discovered evidence.

See Flannery, 354 F.3d at 638; Bank of

Illinois, 75 F.3d at 1171-72.
We have reviewed plaintiff’s deposition testimony, and we do
not believe that his affidavit squarely contradicts that testimony.
True, Scott stated repeatedly that nothing looked out of the
ordinary at the derail and that he did not “take exception to” (an
inartful phrase repeatedly used by defendant’s counsel, see supra
n.1) the condition of the derail or the railroad ties.

He also,

however, testified that he believed that the holes for the spikes
“had wore out” and had become too large and that he believed that
the derail had not been regularly inspected as required.
Dep. at 74, 91-92.)

(Scott

It is also true that Scott did not testify

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that the railroad ties were rotted, but we do not find this
omission renders the affidavit a “sham.” Scott’s argument that the
ties were rotted is consistent with his deposition testimony that
he believed that the spike holes had become enlarged.

In other

words, “enlarged spike holes” and “rotted ties” are not mutuallyexclusive theories.

We would characterize the allegedly enlarged

spike holes as the purported defect, and the condition of the ties
as the circumstances that possibly created a potential for harm.
See Geraty v. Ne. Ill. Regional Commuter R.R. Corp., No. 06 CV 815,
2009 WL 691280, at *8 (N.D. Ill. Mar. 16, 2009) (in a FELA case,
noting that “when a defect is hidden from view, the potential for
harm is less foreseeable.

But when the circumstances that create

the potential for harm are in plain view, foreseeability is more
easily established”) (citations omitted). Moreover, Scott does not
rely solely on his own testimony for the proposition that the ties
were rotted; he relies in large part on photographs that arguably
show that the ties were in poor condition.

He provides suitable

explanations regarding his statements that he saw nothing “out of
the ordinary” and did not “take exception” to the condition of the
derail or ties.

The variations in Scott’s testimony create an

issue of credibility that BNSF will be free to point out at trial,
but they do not rise to the level of inherent inconsistencies that
require us to disregard his affidavit.

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Given the “plaintiff-friendly” nature of the FELA, Kossman v.
Northeast Illinois Regional Commuter Railroad Corp., 211 F.3d 1031,
1036 (7th Cir. 2000), and the fact that we must draw all reasonable
inferences in plaintiff’s favor, we conclude that the evidence--the
photographs of the ties and derail, Viel’s report, Ashlock’s
statement, and plaintiff’s testimony--prevents us from entering
summary judgment in BNSF’s favor.

The evidence is sufficient to

suggest that BNSF had at least constructive notice of a defective
condition in the ties.

BNSF makes much of plaintiff’s failure to

present expert testimony regarding track inspections or the state
of the railroad ties, but we are unpersuaded.

The type of

negligence alleged here and its connection to the alleged injury is
within the common knowledge of a layperson.
CONCLUSION
For the foregoing reasons, the motion of BNSF Railway Company
for summary judgment [60] is denied.

A status hearing is set for

May 9, 2012 at 10:30 a.m. to set a trial date.

DATE:

April 20, 2012

ENTER:

_________________________________________________
John F. Grady, United States District Judge